Con Law Flashcards
Requirements for standing
To assert standing, P must est concrete, direct personal stake in outcome
1. injury in fact
- causation
- redressability
What can Congress regulate under the commerce clause?
Under the commerce clause, congress can regulate channels and instrumentalities of interstate commerce and any activity that has a substantial economic effect on interstate commerce
A regulation of intrastate activity that is is economic in nature will be upheld if
rational basis exists to conclude that the activity substantially affects interstate commerce
Test for intrastate activity that is is noneconomic in nature
regulation will be upheld if Congressional finding that the activity substantially affects interstate commerce (stricter test)
(dormant commerce clause)
State regulation of interstate commerce will be upheld only if:
- regulation is nondiscriminatory
- regulation does not unduly burden interstate commerce
When does strict scrutiny apply?
Applies when:
discrimination is based on a suspect classification
(RAN: race, alienage, national origin)
Fundamental right is implicated (vote, travel, privacy) (Right to Privacy (CAMPERS): contraception, abortion, marriage, procreation, education (private), relations (family), sexual relations)
What is the test for strict scrutiny?
government must show that
- law is necessary to achieve (no less restrictive means)
- compelling govt interest (necessary or crucial for society)
When does intermediate scrutiny apply?
Applies when:
- discrimination is based on gender
- discrimination is based on child being born to unwed parents
What is the test for intermediate scrutiny?
Government must show
- law is substantially related (close fit needed, not necessarily the least restrictive means)
- to an important government interest (less than compelling, more than legitimate) (gender discrimination requires “exceedingly persuasive justification)
When does rational basis apply?
Applies when neither strict or intermediate scrutiny apply
Applies if discrimination is based on age, poverty/wealth, mental incapacity, or necessities for life
What is the test for rational basis?
P (not govt) must show that
- law is not rationally related
- to any legitimate govt interest
What test applies to regulations of speech content?
Strict scrutiny
What test applies to regulations of speech conduct?
time/place/manner test
What is the time/place/manner test for public forums and designated public forums?
Regulation must
1. further important govt interest 2. be narrowly tailored 3. leave open alternative channels of communication
What is the time/place/manner test for nonpublic or limited public forums?
Regulation must
1. be viewpoint neutral 2. be reasonably related to legitimate govt purpose
Six categories of unprotected speech
- speech advocating imminent lawlessness
- fighting words
- obscenity
- child pornography
- false/deceptive advertising
- Defamation
Justiciability
Federal courts can only decide an actual case or controversy
- no advisory opinions
- ripe, not moot
- brought by someone with standing
Advisory opinions lack
- actual dispute between adverse parties OR
- legally binding effect on the parties
Ripeness requirements
- issue is fit for a judicial decision (legal, not factual issues) AND
- plaintiff would suffer substantial hardship in the absence of review
Mootness definition
A live controversy must exist at all stages of review
Mootness exceptions
- controversies capable of repetition that evade review due to their inherently short duration
- cases where D voluntarily stops the offending practice but is free to resume
- class actions in which the class representative’s controversy has become moot, but the claim of at least one other member is viable
Requirements for Standing
- Injury in fact
- particularized injury
- concrete injury - Causation
- Redressability
Exceptions to standing requirements
- taxpayer has standing to challenge their tax bill
- a person MAY have standing to allege that federal action violates 10A by interfering with powers reserved to the states as long as the person has a redressable injury
- people have standing to challenge congressional spending (has to be spending, not providing property) on 1A establishment cause grounds
When can a claimant with standing in their own right assert the rights of a third party?
- it is difficult for the third party to assert their own rights OR
- a close relationship exists between the claimant and the third party
When does an organization have standing to sue on behalf of its members?
- there is an injury in fact to the members
- the members’ injury is related to the organization’s purpose AND
- individual member participation in the lawsuit is not required
Standing for free speech overbreadth claims
A person has standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary (in other words, that the restriction was overbroad), even if that person’s own speech would not be protected under the First Amendment. Essentially, the plaintiff can bring a claim on behalf of others whose speech would be protected under the First Amendment.
–does not apply to restrictions on commercial speech
11A sovereign immunity
The Supreme Court has held that the doctrine of sovereign immunity reflected in the Eleventh Amendment bars a private party’s suit against a state in federal and state courts (and in federal and state agencies)
Does not apply to claims against local governments, by the US, by other states, proceedings in federal bankruptcy courts
Exceptions to 11A sovereign immunity
- consent/waiver
- certain actions against state officers (1. actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state (the state cannot be made to pay retroactive damages); and 2. actions for damages against an officer personally)
- Congress can remove a state’s immunity for actions under 14A power to prevent discrimination, but the removal of immunity must be unmistakably clear (abrogation)
When does abstention apply?
- disposition rests on an unsettled question of state law
- Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith
Adequate and independent state grounds
The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds—even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. If the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.
What powers can Congress exercise?
Those enumerated in art 1 sec 8 and those necessary and proper to carry out its enumerated powers
Does congress have police powers, like the states?
No, but it has similar powers over DC, federal lands, military bases, and Indian reservations
Can the necessary and proper clause support a federal law on its own?
No. Cannot support federal law standing alone, it has to be linked to one of Congress’s enumerated powers
Tax and spend power- what can Congress spend on?
Congress has the power to tax and spend to provide for the general welfare- for any public purpose not prohibited by the constitution
(this general welfare clause does not support nonspending regulations)
Requirements for Congress to impose conditions on the grant of money to state/local governments
Such conditions are valid if
- they are clearly stated
- they relate to the purpose of the program
- they are not unduly coercive AND (ex: Medicaid expansion)
- they do not otherwise violate the constitution
When can congress use commerce power to regulate?
Congress can regulate commerce with foreign nations, native American tribes, and among states
Requirements for a federal law regulating commerce to be within Congress’s Commerce Clause power
- Regulate the channels of interstate commerce
- regulate the instrumentalities of interstate commerce OR
- regulate activities that have a substantial effect on interstate commerce
When can Congress regulate intrastate commerce under the substantial effect prong?
If the court finds a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce
- 10A prohibits regulating noneconomic activity in areas traditionally regulated by state/local govts
- congress cannot compel activity
A valid delegation of legislative power requires
Intelligible standards for the delegate to follow
Bicameralism and presentment requirements
To pass a law, Congress must use bicameralism (passage of a bill by both houses of Congress) followed by presentment to the President for signature or veto
NO line-item vetos
NO legislative veto
Executive Powers
Art II
President must faithfully execute the laws
Implied presidential powers
Strongest when authorized by congress
Where Congress is silent- twilight zone
Against the express will of Congress –likely invalid
Requirements for president to enter treaty
President has the power to enter with consent of 2/3 of senate
Treaties that are self-executing ___ conflicting state laws
Invalidate
they are supreme, like federal law
Which prevails in a conflict between federal law and a valid treaty?
Last in time prevails
Which prevails in a conflict between federal constitution and a valid treaty?
Constitution
Executive Agreements
- no senate approval required
- prevail over conflicting state laws
- federal laws prevail over executive agreements
Exclusive federal powers
- where power of state is expressly limited
- inherently federal powers that can only be exercised by the fed govt
Exclusive state powers
- those not granted to fed government
- general police powers (health, safety, welfare)
Tenth Amendment
Powers not granted to the federal government are reserved to states or people
Congress cannot compel states to pass laws, administer federal programs – anti-commandeering principle
As a practical matter, SCOTUS ______ strikes down a federal regulation or tax that impacts state or local govt entities on 10A grounds
ALMOST NEVER
Preemption
Can be express (in statute)
Can be implied
-conflict between federal and state law such that it is impossible to follow both
-state law impedes or frustrates federal law
-field preemption: a valid federal law may impliedly “occupy” the field, thus barring any state or local law, even if nonconflicting (inferred intent by congress)
Privileges AND immunities clause (art IV)
Prohibits states from discriminating against out-of-state citizens
- important commercial activities and ability to earn a living
- only US citizens
- not absolute
14A Privileges and immunities clause
Protects privileges and immunities and national citizenship
right to petition Congress, right to vote for federal officers, right to interstate travel
Dormant Commerce Clause
State law cannot unduly burden interstate commerce
Discriminatory state law = presumptively invalid
–state can justify if 1. Necessary to achieve purpose unrelated to protectionism 2. No non-discriminatory alternatives
Nondiscriminatory state laws = presumptively valid
–invalid if burden outweighs benefit (essentially irrational)
Dormant Commerce Clause exceptions
- congressional approval
- state as “market participant”
- favoring government performing traditional government functions
The constitution only restricts government action, except for the
13A ban on slavery
State action doctrine
Government action needed for constitution to apply
State action includes laws and acts of govt officials in official capacity
NOT private action
Exception:
1. activities traditionally and exclusive performed by government (exclusive public functions) or
2. significant state involvement in private conduct
5A due process clause is applicable to
Federal government
a person has a right to a fair process when the government deprives the person of life, liberty, or property
14A due process clause is applicable to
States
a person has a right to a fair process when the government deprives the person of life, liberty, or property
due process clause- a deprivation of liberty occurs when
a person
- loses significant freedom of action OR
- is denied a freedom provided by the constitution or statute
Injury to reputation _____ deprivation of liberty or property under the due process clause
IS NOT
due process clause- property includes
-personal and real property
-both tangible and intangible
-government benefits to which there is an entitlement (reasonable expectation of continued receipt)
(NOT at will employment)
Procedural due process requires
- notice
- opportunity to be heard AND
- a neutral decisionmaker
Balancing test for hearing under DPC
Type and extent are determined by:
-importance of the interest to the individual,
-value of procedural safeguards to that interest against the govt interest in fiscal and admin efficiency
Typically, should be a pre-deprivation hearing unless impracticable
Substantive due process
guarantees that laws will be reasonable and not arbitrary, both with respect to rights enumerated in the Constitution (for example, the freedom of speech) and unenumerated rights (for example, privacy)
Applicable standards for substantive due process
Fundamental rights (1A, interstate travel, privacy-related, voting) – strict scrutiny
All others – rational basis
What types of claims apply:
Govt denies everyone:
Government denies targeted group:
Govt denies everyone: substantive due process
Government denies targeted group: due process and equal protection
Privacy-related rights for substantive due process
- marriage
- procreation
- contraception
- parental rights
- right to live w/ extended family
- abortion
Standard for abortion (substantive due process)
Before viability, regulations must not place an undue burned on the woman’s right to obtain an abortion
Post-viability, state can ban unless necessary to protect woman’s health or safety
Rights to interstate travel (substantive due process)
- right to travel from state to state
- right to be treated equally after moving to a new state
Right to international travel
NOT a fundamental right
Protected from arbitrary federal interference by 5A DPC
Rational basis standard
Right to vote
Generally strict scrutiny
Lesser burdens may only get rational basis (restrictions that protect the right to vote)
Standard for right to bear arms
-unclear, but more than rational basis
Sources of EPC guarantees
- 14A EPC —states
- 5A DPC—fed govt
When does strict scrutiny apply?
Fundamental rights or suspect classification
When does intermediate scrutiny apply?
Quasi-suspect classification (such as gender)
When does rational basis apply?
Neither strict or intermediate scrutiny apply
How to show government intent for strict/intermediate scrutiny?
- law discriminatory on its face
- facially neutral law and discriminatory application
- facially neutral law disparate impact + discriminatory intent
Classifications are suspect if they are based on
Race, national origin, and (at state and local levels) alienage
Scrutiny for classifications based on alienage
Fed govt: rational basis
State/local: usually strict scrutiny
Exception: rational basis for positions and activities essential to self-government
Scrutiny for children of undocumented aliens
Likely rational basis
Look for animus (animus is never rational)
Quasi suspect classifications
Gender
Legitimacy of nonmarital children
Gender classifications based on role stereotypes are
Generally invalid
Takings rule
Private property can only be taken for public use and the government must pay just compensation
How to determine if there has been a taking?
-physical confiscation
-permanent, regular occupation
-temporary occupation –case by case analysis
Exceptions:
-Development conditions for public purposes
-Public emergency
Regulatory takings
It is a taking when regulation leaves no economically viable use
If the regulation merely decreases the economic value, then apply the balancing test and consider
Economic impact
Investment-backed expectations
Public interest
What is “public use” for takings considerations?
If the govt’s action is rationally related to a legitimate public purpose, the public use requirement is satisfied
What is “just compensation” for takings considerations?
Fair market value at the time of the taking
Contract clause
State/local laws cannot retroactively impair contract rights
-private party contracts – intermediate scrutiny
-public contracts—heightened scrutiny
Does NOT apply to fed government
Ex post facto laws
Cannot retroactively alter CRIMINAL liability Includes retroactively -criminalizing conduct -increasing punishment -reducing evidence required to convict
Bills of attainder
Both state/local and federal govt are prohibited from passing legislation that punishes individuals without trials
What does the first amendment prohibit?
prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion
applies to states through 14A
What is speech for 1A purposes?
Speech includes words, symbols, and expressive conduct.
Expressive conduct is any kind of conduct that is either inherently expressive, or conduct that is:
-Intended to convey a message, and
-Reasonably likely to be perceived as conveying a message
Unprotected speech
- incitement
- fighting words
- true threats
- obscenity
Elements of incitement
- intended to produce imminent lawless action and
2. likely to produce such action
definition of fighting words
personally abusive words that are likely to incite immediate physical retaliation in an average person
words that are merely annoying won’t do
definition of true threat
words that are intended to convey to someone a serious threat of bodily harm
elements of obscenity
Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
- Appeals to the prurient interest in sex, using a contemporary community standard
- Is patently offensive under contemporary community standards AND
- Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard
Private possession of obscene material
Is allowed in the home (except child porn)
Govt can criminalize sale/distribution
If a defamatory statement is about a public official or public figure or involves a matter of public concern, the First Amendment requires
the plaintiff to prove all the elements of defamation PLUS falsity and some degree of fault in order to recover
If a defamation plaintiff is a public figure, the degree of fault the plaintiff must show is
Actual malice
knowledge of falsity or reckless disregard for truth
Definition of public officials (defamation)
include people (1) holding or running for elective office (at any level), and (2) public employees in positions of public importance (for example, prosecutor, school principal, police officer)
Definition of public figures (defamation)
people who have (1) assumed roles of prominence in society, (2) achieved pervasive fame and notoriety, or (3) thrust themselves into particular public controversies to influence their resolution
if a private figure sues for defamation on a matter of public concern the plaintiff can only
recover actual damages if the plaintiff only shows negligence. To recover punitive damages or presumed damages they need to show actual malice
If a private figure sues for defamation on a matter of private concern
The first amendment is not implicated
Can recover for damages allowed under state law, do not need to show actual malice
Commercial speech gets no 1A protection if
it is (1) false, (2) misleading, or (3) about illegal products or services
Regulations of commercial speech will be upheld only if it
-serves a substantial govt interest
-directly advances that interest AND
-is narrowly tailored to serve that interest (reasonable fit, not least restrictive)
(test is a form of intermediate scrutiny)
Content-based regulations of speech are subject to
strict scrutiny
content-neutral regulations of speech are subject to
intermediate scrutiny (must advance important interests and must not burden substantially more speech than necessary)
content based restrictions on speech
limit speech based on subject or viewpoint
content-neutral restrictions on speech
limit speech on a basis other than content (often time, place, manner)
Speech restrictions for traditional public forums and designated public forums
Content based -strict scrutiny
Content-neutral – intermediate scrutiny:
-must be narrowly tailored to serve an important government interest (need not be the least restrictive) AND
-leave open alternative channels of communication
Speech restrictions for limited public forums and nonpublic forums
- can restrict speech to preserve spaces for intended use
- cannot engage in viewpoint discrimination (triggers strict scrutiny)
- must be viewpoint neutral and reasonably related to a legitimate govt purpose
Speech restrictions in primary/secondary public schools
cannot censor personal student speech on campus absent substantial disruption -exception: can ban speech promoting illegal drugs limited restrictions on personal student speech off-campus -prevent bullying, cheating, threats -safety or educational concerns must clearly outweigh speech interests School speech (related to teaching) -restrictions must be reasonably related to educational objectives (deferential standard for schools)
Speech in public employment- unprotected speech
- workplace speech on matters of private concern
- speech pursuant to official duties
Speech in public employment – protected speech
speech as a private citizen on matters of public concern
-balance value of speech with interest in efficient workplace
speech as private citizen on matters of private concern
-unclear test, probably protected absent detrimental effect
Vagueness doctrine
DPC invalidates laws that don’t give reasonable notice of what is prohibited
-based on 1A, applies more strictly in speech context
Overbreadth 1A
A law is invalid if it bans substantially more speech than necessary
Prior restraints
Types: injunctions, licensing schemes
Disfavored, but treated under standard free speech doctrine
Content based -strict scrutiny
Content-neutral – intermediate scrutiny
Content-based prior restraints usually fail absent special societal harm
Prior restraints: licensing schemes require procedural safeguards:
- well-defined standards
- prompt appeals and judicial determination
- no unfettered discretion for officials
Free exercise clause
Prohibits govt from discriminating on the basis of religious belief, status, or conduct
(religious belief evaluated on sincerity, not content)
Which laws are subject to the free exercise clause?
Laws that discriminate based on religious conduct, status or belief (including facial discrimination and narrowly tailoring to target religion)
-strict scrutiny
Neutral laws of general applicability are NOT subject to the FEC
(but refusing exemption requests could trigger strict scrutiny)
Religious exemption from generally applicable laws is
Usually not required except in a few narrow situations (ex: employment discrimination for clergy)
Establishment clause under the Lemon test
Government action violates the EC if
- primary purpose is not secular
- primary effect advances or inhabits religion OR
- produces excessive govt entanglement w/ religion
Establishment clause under the neutrality test
The government must remain neutral with respect to religion, neither favoring nor disfavoring it
Establishment clause under the coercion test
The government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion
Establishment clause under the endorsement test
The government must not appear to endorse or disapprove of religion from the standpoint of a reasonable and informed observer and, therefore, make religion seem relevant to a person’s standing in the political community
Establishment clause under the history & tradition principle
In some cases, the Court will find that a government religious display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation.
Note: It helps if the display or practice has been around for a while or is in a historical setting
Three categories of president’s domestic authority
- appoint high=level officers with senate approval
- pardon federal offenses
- veto bills
Three categories of president’s power over external affairs
- can act militarily but cannot declare war
- represent US in foreign relations
- enter into treaties with 2/3 senate approval
Congress’s taxing and spending power are limited by
Individual rights
Privileges AND immunities clause in article 4 prevents
Discrimination by states against out-of-state people for economic interests
Privileges OR immunities clause in 14A prevents
States from denying their own citizens rights guaranteed by the constitution
